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Tuesday, December 13, 2005

Ind. Decisions - Court of Appeals decides seven today, including question of making town's private settlement public

The case of the Knightstown Banner, LLC v. Town of Knightstown, et al. was written up here on Nov. 11th, under the heading "Question of making town's private settlement public argued before Court of Appeals." Today, the Court of Appeals has reversed the trial court and ruled in favor of the Knightstown Banner that the terms of the settlement at issue are a public record.

The Indianapolis Star already has posted a brief blurb on this ruling, here.

Judge Riley states the issue as:

Whether documents created by the attorney appointed by Knightstown’s reciprocal insurer, memorializing the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, are public records under the Indiana Access to Public Records Act (APRA).
More from the opinion:
The overarching question of whether the settlement agreement drafted by an attorney retained by a public agency’s insurance company can be considered a public record, and therefore be subject to the requirements of APRA, presents us with an issue of first impression in Indiana and compels us to interpret the relevant provisions of the statute. * * *

[M]indful of the APRA’s purpose of openness, we do not allow a public authority to thwart disclosure required by APRA by having an attorney or an insurer’s attorney prepare every writing that the public authority wishes to keep confidential. Accordingly, we reverse the trial court’s judgment and remand this case with instructions for the trial court to enter an Order mandating Knightstown to receive the settlement agreement from Retained Town Counsel and to deliver to the Banner a copy of its settlement agreement with Steinwachs.

CONCLUSION. Based on the foregoing, we find that the agreement created by the attorney appointed by Knightstown’s insurance company, memorializing the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, is a public record under APRA. We reverse and remand to the trial court with instructions to enter an Order mandating Knightstown to receive the settlement agreement from Retained Town Counsel and to deliver to the Banner a copy of its settlement agreement with Steinwachs. Reversed and remanded with instructions.

In Cinergy Corporation, et al. v. St. Paul Surplus Lines Insurance Company, et al., Judge Riley states the issue to be:
Whether a policyholder of a first-layer liability insurance policy is entitled to payment of defense costs as they are incurred when the insurance policy does not contain a duty to defend clause or express language authorizing a delay in payment of those costs until determination of whether the underlying claims are covered. * * *

In sum, Cinergy’s arguments are merely attempts to identify imperfections in the insurance policy that simply do not rise to the level of ambiguity. Accordingly, mindful of our standard of review and in light of the evidence before us, we find that the insurance policy is clear and unambiguous, awarding defense costs upon the determination that the Underlying Lawsuit is covered by the policy.

CONCLUSION Based on the foregoing, we find that the unambiguous language of the policy only entitles Cinergy to payment of defense costs upon determination of coverage of the Underlying Lawsuit. Affirmed.

In Lise Garneau, et al. v. Charles E. Bush, Jr., MD, et al., Judge Mathias writes:
Real and Lise Garneau (“the Garneaus”) appeal from the Carroll Circuit Court’s grant of summary judgment in favor of Charles E. Bush, Jr., M.D. (“Dr. Bush”) on their claim for medical malpractice. They raise the following issue: whether the trial court erred when it found the Garneaus’ claim was barred by the statute of limitations. Concluding that the trial court improperly granted summary judgment in favor of Dr. Bush, we reverse and remand for proceedings consistent with this opinion. * * *

Conclusion The Garneaus possessed information that would have led a reasonable person to discover the alleged malpractice of Dr. Bush’s installation of an obsolete prosthesis within the applicable two-year statute of limitations. The doctrine of fraudulent concealment does not save the Garneaus’ complaint from being time-barred. However, the designated evidence creates a genuine issue of material fact as to whether the doctrine of continuing wrong tolls the statute of limitations. In addition, the designated evidence creates a genuine issue of material fact as to whether Dr. Bush’s treatment of Lise with pain medication and without revision or referral for corrective surgery after September 17, constituted a separate act of negligence. Therefore, the trial court erred in granting summary judgment in favor of Dr. Bush. Reversed and remanded for proceedings consistent with this opinion.

In George F. Kopetsky II v. Marjorie Crews, et al., Judge Vaidik summarizes:
George Kopetsky appeals the trial court’s determination that he holds not an express access easement but only a prescriptive access easement limited to agricultural and recreational purposes over a portion of the property owned by Jeffrey and Lisa Bennett. Finding that Kopetsky holds an express easement permitting access to his property for any purpose, we reverse.
In Sherry & James Clevenger v. Progressive Insurance Company, Judge Friedlander writes:
As restated, the dispositive issue on appeal is: Did the trial court err by granting summary judgment where the insurance policy provisions at issue are ambiguous as to the event that would trigger commencement of the limitation period for the Clevengers to bring their underinsured motorist (UIM) claim? We reverse and remand for further proceedings.
In Todd Estes Jones v. State of Indiana, Judge Mathias writes:
Todd Estes Jones (“Jones”) admitted a probation violation in Madison Superior Court. He appeals his probation revocation, raising one issue: whether the trial court abused its discretion by ordering him to serve thirty years of his previously suspended sentence. Concluding that the trial court properly sentenced Jones, we affirm.
Finally, today, in In the Matter of John D. Delaney, Judge Riley writes:
Based on the evidence before us, we conclude that the probate court erred in dismissing the Trustee’s Motion to Dismiss for Failure to State a Claim. See City of South Bend, 821 N.E.2d at 9. As we established above, Geraldine’s claim is barred because she failed to file her contingent claim within nine months of John’s death. See I.C. §§ 29-1-14-1, 29-1-47-7. Consequently, we reverse the trial court’s decision.

Posted by Marcia Oddi on December 13, 2005 12:26 PM
Posted to Ind. App.Ct. Decisions